Death penalty questioned in Castro case

Murder charges not impossible

COLUMBUS — A prosecutor faces numerous obstacles as he weighs whether to bring death-penalty charges against a man accused of kidnapping three women and forcing one of them into miscarriages through starvation and beatings, experts on capital punishment say.

Most agree such charges are possible against Ariel Castro, though not without legal fights, starting with constitutional questions over the definition of a murder victim for the purposes of a death-penalty case.

Cuyahoga County prosecutor Tim McGinty said at a news conference on May 9, days after the women were rescued from Castro’s run-down home, that capital punishment “must be reserved for those crimes that are truly the worst examples of human conduct.”

“The law of Ohio calls for the death penalty for those most depraved criminals, who commit aggravated murder during the course of a kidnapping,” he added.

Ohio previously changed its law to include the unlawful termination of a pregnancy among possible aggravated murder charges, said Doug Berman, an Ohio State University law professor and death-penalty expert.

“Ergo, Castro, at least as the facts have been described and developed, would seem to be the poster child for the worst of the worst unlawful pregnancy terminator,” he said.

Adding other crimes, such as kidnapping or rape, to aggravated murder is how death-penalty charges are brought in Ohio.

One of the closest precedents to the Castro case is the 2005 Texas prosecution of Gerardo Flores, sentenced to life in prison under the state’s fetal protection law after being convicted of stepping on his pregnant girlfriend’s stomach and causing the deaths of their unborn twin sons.

Flores had argued that his girlfriend wanted an abortion so he hesitantly agreed to press his 175-pound frame on her belly.

In California, Scott Peterson was sentenced to death for the first-degree murder in the 2002 death of his wife, Laci Peterson, and second-degree murder in the death of her 8-month-old fetus. Peterson said he had nothing to do with their deaths.

Ohio enacted a fetal homicide law in 1996.

Earlier this month in Pennsylvania, an abortion doctor convicted of killing babies born alive at his clinic avoided a possible death sentence by waiving his right to appeal in exchange for a sentence of life without parole.

Prosecutors argued that Dr. Kermit Gosnell killed the babies after they were born, not as fetuses. Gosnell argued that none of the fetuses was born alive and that any movements they made were posthumous twitching or spasms.

But the Castro case brings up another layer of difficulty given that no human remains of any kind have been found on his property.

“How does the prosecution prove a pregnancy? How do you prove that Castro caused the termination of the pregnancy?” said Michael Benza, a Case Western University law professor who has also represented death row clients.

The nature of the crime makes it likely that, death penalty or not, Castro would face a life sentence if convicted on rape charges alone, said Hofstra University law professor and death-penalty expert Eric M. Freedman.

“The odds that it’s going to go to a death penalty trial and result in a jury verdict of death,” he said, “are vanishingly small.”